Wednesday, June 28, 2017

US internet service provider Cox Communications has submitted new paperwork in its appeal against the landmark ruling in 2015 when it was held liable for the copyright infringement of its customers for failing to properly deal with repeat infringers.

As previously reported, the legal battle between music firm BMG and Cox was an important test of the safe harbour rules in America’s Digital Millennium Copyright Act, and the responsibilities of safe harbour dwellers to respond to complaints from copyright owners about their customers distributing content without licence.

In the case, emails between Cox employees showed that although in theory the ISP had a policy to tackle repeat infringers, ultimately suspending or cancelling their accounts, it often didn’t apply that policy so as not to lose customers.

By losing its legal battle with BMG, Cox was ordered to pay the music rights firm $25 million in damages. The ruling also arguably set an important precedent regarding the procedures internet companies must employ to enjoy safe harbour protection. Though that precedent is appeal pending, of course.

Cox’s new filing cites a recent Supreme Court ruling in the US that said that convicted sex offenders cannot be banned from social media, because doing so would violate their free speech rights under the First Amendment of the American Constitution.

In the case, which overturned a law in North Carolina that had been applied against a man called Lester Packingham, judge Anthony Kennedy wrote: “To foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights”.

Cox reckons that if the courts can’t ban convicted sex offenders from social media, it shouldn’t have to disconnect its customers’ internet access based on unproven claims of copyright infringement. The ISP states in its new filing: “[The] Packingham [case] is directly relevant to what constitute ‘appropriate circumstances’ to terminate internet access to Cox’s customers. The decision emphatically establishes the centrality of internet access to protected First Amendment activity”.

The ISP’s submission goes on: “If it offends the Constitution to cut off a portion of internet access to convicted criminals, then the district court’s erroneous interpretation of Section 512(i) of the DMCA – which effectively invokes the state’s coercive power to require ISPs to terminate all internet access to merely accused infringers – cannot stand”.

It remains to be seen whether the court decides that the Packingham ruling does indeed alter the obligations of safe harbour dwellers. Rights owners who saw Cox as a step in the right direction – having argued in the past that some previous court rulings had set the bar too low for the takedown obligations of internet firms – will be hoping not.